Morris v. State, 92-2796
Decision Date | 21 July 1993 |
Docket Number | No. 92-2796,92-2796 |
Parties | 18 Fla. L. Week. D1629 William A. MORRIS, III, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
William R. Amlong of Amlong & Amlong, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Edward Giles, Asst. Atty. Gen., West Palm Beach, for appellee.
At issue in this appeal is whether an official of a police agency authorized to serve a search warrant must participate in or supervise a search conducted pursuant to the warrant. We hold that such an official must participate in or supervise the search, and hereby reverse a ruling to the contrary.
Appellant, William A. Morris, III, is a medical doctor and was charged by information with Medicaid fraud, wherein it was alleged that Morris billed the state in an amount over $200 for medical services not rendered. He moved to suppress evidence seized in a search of his premises by employees of the Florida Auditor General's Office. After an adverse ruling, he pled nolo contendere to the charges, but reserved the right to appeal the ruling on the motion to suppress.
By statute, the Auditor General of Florida is given broad authority to investigate Medicaid fraud and to examine the records of certain health care providers. However, the authority to examine records does not extend to physicians. Section 409.920(10)(a), Florida Statutes (1991) states in relevant part that:
(10) In carrying out his duties and responsibilities under this section, the Auditor General may:
(a) Enter upon the premises of any health care provider, excluding a physician, participating in the Medicaid program to examine all accounts and records that may, in any manner, be relevant in determining the existence of fraud in the Medicaid program....
(Emphasis added). Hence, to examine or seize the records of a physician, the government must secure a search warrant or utilize other lawful process. As to search warrants, section 933.08, Florida Statutes (1991) provides:
Search warrants to be served by officers mentioned therein.--The search warrant shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution.
(Emphasis added). Because of the importance and the constitutional dimension to a citizen's right to be free of unreasonable searches and seizures, statutes authorizing searches and seizures should be strictly construed, and the issuance of search warrants and searches conducted pursuant thereto must strictly conform to such statutory provisions. State v. Tolmie, 421 So.2d 1087 (Fla. 4th DCA 1982).
Under section 933.08, the persons authorized in a warrant to conduct a search and seize the items described must actually execute the warrant and conduct the search. In Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980), the second district invalidated a search conducted by police officers from one jurisdiction where the warrant was directed to officials of another jurisdiction, even though officers of the designated jurisdiction were present during the search. See also Stewart v. State, 389 So.2d 1231 (Fla. 2d DCA 1980).
Subsequently, in State v. Wade, 544 So.2d 1028 (Fla. 2d DCA), rev. denied, 553 So.2d 1168 (Fla.1989), the court approved the use of non-police advisers to aid the police in identifying computer parts described in a search warrant because, the court noted, police officers are not generally trained in the recognition of computer parts and equipment.
Although Wade did not mention the Hesselrode or Stewart decisions, and did not expressly address the degree of participation by the assisting civilians, the opinion suggests that the civilians' role was not extensive. For instance, the court began the discussion by noting that "the use of advisers to identify items encompassed by a search warrant is not without precedent." 544 So.2d at 1030. Further, the court reasoned that "[w]ere they [the police] not allowed to utilize the assistance of experts to identify such property, then it would simply be impossible for law enforcement officers to execute a search warrant for the seizure of computer equipment and parts." Id.
Initially, we do not believe that section 409.920(10)(a), and its exclusion of a...
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